IMPORTANT POINT
Presumption available under Section 118(G) of Negotiable Instrument Act comes into operation only at the time of trial.

K.U. Chandiwal, J.— Heard finally.

2. In proceedings under Section 138 of the Negotiable Instrument Act process is challenged by the Applicant.

3. Applicant had availed financial facilities from Respondents HDFC Bank Rs.1.95 crore on 15th September, 2006 and Rs.4.45 crore in 2007. Payment schedule was not adhere. Defence is, Bank had assured cash credit facility of Rs.150 crore. Under a letter, addressed by the Applicant to the Bank dated 14th September, 2008, Applicant had issued five cheques with different quoted amounts. On presentation of said cheques, they were dishonored owing to insufficiency of funds. It was followed by statutory notice and then 5 complaints under Sections 138, 141 of the Negotiable Instrument Act was filed.

4. Learned Counsel says, whether in a cheque of such type when drawer and drawee is the same, could it be a liability of the Applicant to answer the claim or to face the prosecution in terms of Section 138 read with Section 141 of the Negotiable Instruments Act.

5. In all complaints, Applicant’s pleas are recorded, then in 4 complaints affidavit of evidence is tendered. Mr. Tiwari could not dispel this fact. Legal position is indicated in the matter of Subramanium Sethuraman v. State of Maharashtra & Anr., reported in 2004 SCC 712, in paragraph 16 which reads as under:

“16. The next challenge of the learned Counsel for the appellant made to the finding of the High Court that once a plea is recorded in a summons case it is not open to the accused person to seek a discharge cannot also be accepted The case involving a summons case is covered by Chapter XX of the Code which does not contemplates a stage of discharge like Section 239 which provides for a discharge in a warrant case. Therefore, in our opinion the High Court was correct in coming to the conclusion once the plea of the accused is recorded under Section 252 of the Code the procedure contemplated under Chapter XX has to be followed which is to take the trial to its logical conclusion.”

6. In paragraph 19 of the said judgment, import of Section 482 of the Code of Criminal Procedure is discussed which reads as under:

“19. We see that this Court while dismissing earlier S.L.P. As withdrawn had left the question of legality of the notice open to be decided at the trial. Therefore, legitimately the appellant should raise this issue to be decided at the trial. Be that as it may, we cannot prevent an accused person from taking recourse to a remedy which is available in law. In Adalat Prasad’s case we have held that for an aggrieved person the only course available to challenge the issuance of process under Section 204 of the Code is by way of a petition under Section 482 of the Code. Hence, while we do not grant any permission to the appellant to file a petition under Section 482, we cannot also deny him the statutory right available to him in law. However, taking into consideration the history of this case, we have no doubt the concerned Court entertaining the application will also take into considerations i.e. raised by the respondent in this case as to delay i.e. being caused by the entertainment of applications and petitions filed by the accused.”

7. The aforereferred legal position in fact, does not allow to entertain these Petitions and only recourse available is to face trial. However, since an important question is raised, same needs to be dealt with.

8. The cheque was crossed issued to HDFC Bank Account M/s. K. Sada Vijay Kumar Beedi Leaves Merchant against Account No. 3752790000051. The drawer of the cheque was M/s. K. Sada Vijay Kumar Beedi Leaves Merchant, by authorised signatories of cheque No. 414892 drawn on the said Bank, dated 30th September, 2009. The cheque returning memo refers to K. Sada Vijay Kumar Beedi Leaves Merchant dated 30th September, 2009.

9. Mr. Tiwari submits that the legal position in identically placed situation was indicated by this Court in the matter of M/s. Credential Finance Limited & Others v.